THE BLOG
04/22/2014 03:02 pm ET Updated Jun 21, 2014

Free Speech Lessons From a Lifetime Movie That Beat Censorship, Not Women

It's really almost too easy to poke fun at Lifetime movies.

Critic Christopher Lawrence of the Las Vegas Review Journal once wrote that the Lifetime Movie Network's unofficial motto should be "mistreating women every two hours since 1998." Comedian Jim Gaffigan riffs that "there's always a woman getting beaten on that channel." And that beating usually occurs at the hands of a machinating man who, as Lifetime movie reviewer extraordinaire Jennifer Boudinot wryly wrote in The Huffington Post, "doesn't turn into a true asshole until after he gets married."

But on April 17, Lifetime Entertainment Services scored an important First Amendment victory before a New York appellate court that was anything but a joke. The legal triumph came, appropriately enough, in defense of Lifetime's right to air one of its made-for-television movies, Romeo Killer: The Chris Porco Story.

The decision in Porco vs. Lifetime Entertainment Services, LLC, as becomes clear, is important for two reasons. First, it reaffirms the long-standing legal principle in the U.S. that prior restraints on speech -- orders stopping speech before it can occur - are presumptively unconstitutional. If you don't like something because you think it is going to be false and damaging to you, the correct remedy is let it first come out and then sue for defamation.

Second, and perhaps more importantly, the result in Porco suggests that people can't stop the airing of movies and television shows simply because they either don't like the way they think they will be portrayed or because they want money when their names and likenesses are used in such fare. This should be a wake-up call for those celebrity wannabes who think they deserve a paycheck every time a media outlet drops their name.

But for now, back to the movie. As somewhat breathlessly described on Lifetime's website, here's all one really needs to know about Romeo Killer

The quiet town of Delmar, New York, was considered anything but dangerous . . . until 21-year-old Chris Porco (Matt Barr) was accused of brutally murdering his father Peter and disfiguring his mother Joan (Lolita Davidovich) in a savage axe attack, a claim made all the more shocking when the case's lead detective Joe Sullivan (Eric McCormack) believed Joan had identified Chris as her attacker. . . . Prosecutors believed that beneath Chris' picture-perfect façade was a devious and cunning sociopath who would stop at nothing to keep his lies hidden. In the end, he was convicted of second-degree murder of his father, but many in the town of Delmar firmly believe the jury wrongfully convicted an innocent young man.

Not surprisingly, Christopher Porco, who is serving 46 years to life in prison at the Clinton Correctional Facility in Dannemora, N.Y., objected to the movie and sought an injunction stopping it from being aired. Surprisingly, he initially was granted a temporary restraining order stopping Lifetime from airing it.

His legal theory was that the movie was fictionalized and used, without his permission and for a profit, his name and likeness. "It's become fairly clear that there's just rampant fictionalization in this movie," Porco stated in one hearing in the case.

He claimed to control this right of publicity under two New York statutes, one which provides that a company "that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor." The other statute allows for a private civil lawsuit for such unauthorized uses.

Courts traditionally recognize a clear dichotomy between the unauthorized use of someone's name or likeness in expressive works (movies, television shows, books) and in advertisements. The former are safeguarded by the First Amendment, especially when they relate to newsworthy topics or deal with matters of public concern, while the latter go unprotected because they suggest a false endorsement. An axe murder like the one giving rise to Romeo Killer certainly qualifies as newsworthy, no matter how silly, sappy or sensational a Lifetime movie about it may be.

Christopher Porco sought to obliterate this distinction. He claimed that when an expressive work is fictionalized -- think here about movies "inspired by" real-life stories and television shows "ripped from the headlines" but with tweaked and twisted plot turns -- its creators must get the permission of those portrayed in it. In brief, there would be no such thing as an unauthorized account or biography were Porco to have prevailed.

Imagine what that would do for someone like Oliver Stone, who has feasted from movies such as W., JFK, and Nixon that seemingly take more than a few liberties with the facts yet still tell compelling and important stories.

"That portions of the movie [Romeo Killer] may be fictionalized, dramatized or embellished does not constitute a sufficient basis for the imposition of a prior restraint enjoining its broadcast," wrote Presiding Justice Karen Peters for a unanimous three-judge panel in Porco.

Christopher Porco is not necessarily remediless. As Peters wrote, "judicial redress following publication is available if it is ultimately proven that defendant abused its rights of speech." But for now, the show must go on, and Romeo Killer, with the First Amendment squarely behind it, is set to air on Lifetime at noon on May 3.